Tafoya v. Sears Roebuck and Co.

Citation884 F.2d 1330
Decision Date01 September 1989
Docket NumberNo. 85-1818,85-1818
Parties, Prod.Liab.Rep.(CCH)P 12,251 Samuel Joesph TAFOYA, Plaintiff-Appellee, v. SEARS ROEBUCK AND CO. and Roper Corporation, Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Julia M. Duffy (Mary A. Wells with her on the brief) of Weller, Friedrich, Hickisch, Hazlitt & Ward, Denver, Colo., for defendants-appellants.

Stephen N. Berkowitz (Leigh M. Lutz, with him on the brief, of Lutz and Berkowitz, Denver, Colo., and Richard Kranzler, Wheat Ridge, Colo., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR and BALDOCK, Circuit Judges.

HOLLOWAY, Chief Judge.

Plaintiff Tafoya's left hand and wrist were seriously injured when his hand was caught in the rotating blades of a riding tractor/lawnmower which had turned over. The jury returned a verdict of $150,000.00 for Tafoya based on strict liability in tort, holding Tafoya 50% at fault, the manufacturer Roper Corporation (Roper) 30% at fault, and the seller Sears Roebuck and Company (Sears) 20% at fault, thus reducing Tafoya's award to $75,000. I.R. 58.

Roper and Sears appeal the adverse judgment entered after the trial court's denial of their motions for judgment n. o. v. and a new trial. We affirm.

I Factual Background & Procedural Posture

Viewing the evidence in the light most favorable to Tafoya, who prevailed on the jury verdict, the record shows the following:

In 1979 Tafoya purchased a used tractor/lawnmower which had two previous owners. The mower was manufactured by Roper in 1968 and sold by Sears in 1969. Tafoya had just finished mowing weeds on his neighbor's property in June, 1983 when the riding tractor/lawnmower tipped over. 1 The weeds surrounded trees which were adjacent to a drop-off of approximately 30 feet. IV R. 162. The mower is 50 inches wide and the trees were 54 inches from the drop-off and were approximately six feet apart. VI R. 52-53, 55. Tafoya had returned to mow a patch of weeds which had been missed, just up the hill above the two trees. He made the cut and then drove between the trees toward the drop-off. Staying as close to the tree on the left as he could without scarring it, he began turning to the left, along the edge of the drop-off. As he turned, with the nose of the mower just past the tree on the left, the mower tipped, rolled over the drop-off, and lodged upside down in some chokecherry bushes, approximately six feet down from the edge. By this time, he had mowed the area by the drop-off at least 16 times. IV R. 90, 94, 101.

Tafoya testified that the mower tipped while still entirely on the edge of the property. He said that as the mower tipped to the right, he jumped off to the left toward the trees, and then slid down over the edge of the drop-off. IV R. 94, 95, 100. 2 Tafoya said that as he slid over the edge of the drop-off, he reached out to push off the mower's deck, but that his hand slipped off the rim of the deck and into the spinning blades. IV R. 100-102. 3 Tafoya's hand was severely injured. A physician testified there was "a near amputation" of his thumb, which was lacerated and fractured in several places. His wrist and ring finger were also fractured and several bones were exposed. II R. 41-42.

At the time Roper manufactured the mower in 1968 it conformed to all industry safety standards. VI R. 10-24. When Sears sold the mower in 1969, two separate manuals were provided to purchasers, setting forth instructions and warnings. Defendants' Exhs. G, H. Although Tafoya was aware of the manuals, he never asked the previous owners for them, nor did he request them from Sears. IV R. 154, 157.

There was conflicting testimony as to whether the mower conformed to the state of the art in 1968. Tafoya's expert Sevart testified that deadman devices were state of the art in 1968 and that the riding tractor/lawnmower could have feasibly been equipped with one. III R. 71 4 Roper's Tafoya withdrew all but his strict liability claims before trial. The jury was instructed on the elements of strict liability and on the defenses of assumption of the risk and misuse. The jury was also instructed to consider Tafoya's fault. IX R. 18. The jury found Tafoya 50% at fault, Roper 30% at fault, and Sears 20% at fault.

expert testified that the mower conformed to the state of the art in 1968. VI R. 46-47.

Sears and Roper filed a motion for judgment n. o. v., or in the alternative, for a new trial. The trial court denied their motions in a brief order. I.R. 87. On appeal they argue that: (1) Sears cannot be held strictly liable because it is a seller and not a manufacturer; (2) Colorado's statutory rebuttable presumption of non-defectiveness must be rebutted by clear and convincing evidence and not a mere preponderance of the evidence, as the jury was instructed; (3) the crashworthiness or second collision doctrine does not apply to riding lawnmowers and that, assuming it does, the evidence was insufficient to show enhancement of Tafoya's injuries; (4) because an ordinary consumer would have appreciated the risk of harm (from the rotating blades), the lawnmower was not unreasonably dangerous; and (5) Tafoya voluntarily assumed the risk of injury.

II Analysis
A. Denial of the Motion for Judgment Notwithstanding the Verdict

In reviewing the denial of a motion for judgment n. o. v., we employ the same standard as the trial court. Brown v. McGraw-Edison Company, 736 F.2d 609, 613 (10th Cir.1984). "Judgment n.o.v. is proper only when the evidence so strongly supports an issue that reasonable minds could not differ." Ryder v. City of Topeka, 814 F.2d 1412, 1418 (10th Cir.1987) (quoting Delano v. Kitch, 663 F.2d 990, 1002 (10th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982)). We view the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences from the evidence. Trujillo v. Goodman, 825 F.2d 1453, 1456 (10th Cir.1987). We do not consider the credibility of witnesses, weigh the evidence, or substitute our judgment for that of the jury. Brown, 736 F.2d at 615. And if there is conflicting or insufficient evidence to warrant a one-way conclusion, judgment n. o. v. is inappropriate. Ryder, 814 F.2d at 1418. A judgment "notwithstanding the verdict should be cautiously and sparingly granted." Bruno v. Western Electric Company, 829 F.2d 957, 962 (10th Cir.1987).

i.

Sears' Strict Liability as a Seller Under Colo. Rev. Stat.

Sec. 13-21-402

It is undisputed that the riding tractor/lawnmower was manufactured by Roper and sold by Sears. The jury found Sears 20% at fault. Sears argues that as the seller it cannot be held strictly liable. Colorado statutes expressly limit strict product liability actions to manufacturers, unless jurisdiction cannot be obtained over a particular manufacturer, in which case that manufacturer's principal distributor or seller is deemed the manufacturer. 5

Tafoya does not contend that Sears actually manufactured the riding lawnmower, but rather that Colo. Rev. Stat. Sec. 13-21-401 deems certain sellers manufacturers. 6 Tafoya argues that Sears is a manufacturer within the meaning of Sec. 13-21-401 because it owned Roper in whole or significant part and/or because it exercised some significant control over all or a part of Roper's manufacturing process. 7 If, viewed in the light most favorable to the plaintiff, see Trujillo, 825 F.2d at 1456, the evidence supports either of these contentions, then the jury was entitled to deem Sears a manufacturer for purposes of the statute.

Tafoya's expert witness, Mr. Kitzes, testified that since the mid-1960's, Sears had "a substantial stock ownership of Roper...." V R. 50. Kitzes was employed from 1974 through 1981 by the Consumer Product Safety Commission. V R. 20. He was employed to develop and publish a standard for power mowers, in order to prevent unreasonable risks of injury. In completing this assignment Kitzes obtained the Consumer Product Safety Commission file on power mowers and reviewed all the material that had been collected, dating from the mid-1950's through 1977. V R. 22. His review of these files revealed Sears' interest in Roper.

Viewed in the light most favorable to Tafoya, the evidence supported a finding that Sears owned Roper in whole or significant part. Sears does not point to any evidence which would tend to show that it did not own such an interest in Roper. While Sears argues that Kitzes' testimony does not sufficiently explain the phrase "substantial stock ownership," the admissibility of evidence is within the discretion of the trial court, see United States v. Turner, 799 F.2d 627, 630 (10th Cir.1986), and we do not weigh the evidence in reviewing a trial court's denial of a motion for judgment n.o.v. Brown, 736 F.2d at 615. Because there was competent evidence that Sears owned Roper in substantial part, the jury was entitled to deem that Sears was a manufacturer within the meaning of Colo. Rev. Stat. Sec. 13-21-401(1).

Section 401(1) is phrased in the disjunctive so that Sears' partial ownership of Roper alone satisfied the requirement.

                However, in addition Tafoya argued that Sears exercised significant control over the manufacturing process and we note that there was evidence upon which the jury could reach that conclusion. 8   Thus, the finding of liability as to Sears was not error
                
ii. The Rebuttable Presumption of Non-Defectiveness

Colorado Revised Statute 13-21-403(1)(a) & (3) creates a rebuttable presumption that any product that conformed to the state of the art prior to its sale, or caused injury ten years after it was sold for use or consumption, is not defective. 9 There is no dispute that the lawnmower in this case was first sold to the public more than ten years prior to Tafoya's injury on June 12, 1983, see Patterson v. Magna American Corp., 754 P.2d 1385, 1387 (Colo.App.1988) (the statutory language refers to the...

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